1507714 (Migration)

[2016] AATA 3148

1507714 (Migration) [2016] AATA 3148 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wayne Grant Skillicorn

CASE NUMBER:  1507714

DIBP REFERENCE(S):  BCC2014/1996854

MEMBER:Mary-Ann Cooper

DATE:29 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 January 2016 at 11:41am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2015 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 August 2014 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.572.222 and cl.572.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not have evidence of a current enrolment or health cover.

4. The applicant appeared before the Tribunal by telephone on 14 December 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue before the delegate was whether the applicant met the criteria in cl.572.222 and cl.572.225, that is, whether, at the time of its decision, the applicant provided a certificate of enrolment (CoE) and met the health cover requirements for a student visa.

8. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

9. The other issue related to cl.572.225 which requires that:

   The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

10. Prior to the hearing the applicant provided the Tribunal with a copy of his Confirmation of Enrolment (CoE) for a Certificate IV in Advanced Baking for the period of 21 July 2014 to 12 December 2014 and documents confirming his ongoing health insurance. He also provided a written statement outlining events and claiming that these documents had been provided to the Department with his original application.

11. At the hearing the Tribunal asked the applicant if he had a current CoE or was enrolled in a course of study, noting that this was a time of decision criterion for the grant of the visa. The applicant frankly acknowledged that he was not currently enrolled. He said there was no other course he could usefully undertake and he could not afford to undertake any further courses.

12. He explained the chain of events and stated that he had provided the Department with all the necessary documents in a timely manner. He said that it was because of its delays in processing his application that he had lost the chance to have his application granted.

13. While the Tribunal sympathises with the applicant’s circumstances, as explained to him at the hearing, it has no discretion in this regard.

14. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

15. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

16. For these reasons, the decision under review must be affirmed.

17. The Tribunal notes that it is open to the applicant to request the Minister to intervene in his case if he feels that his circumstances may meet the Minister’s guidelines.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mary-Ann Cooper
    Member